M/s. Okay Marketing, Surat V. The Income Tax Officer, Ward-2(1), Surat

ITA 2275/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6099 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 10-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: M K PATEL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH (SMC), AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.2275/AHD/2013 ( / ASSESSMENT YEAR : 2006-07) M/S.OKAY MARKETING 198, BEHIND NASARVARI PARK SOCIETY BHATHENA ROAD ANJANA, SURAT 395 002 / VS. THE ITO WARD-2(1) SURAT $ ./ ./ PAN/GIR NO. : AAAFO 7513 Q ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : SHRI M.K. PATEL, AR ($'*) / RESPONDENT BY : SHRI S.L. CHANDEL, SR.DR +,*- / DATE OF HEARING 25/04/2017 ./0*- / DATE OF PRONOUNCEMENT 25/ 04/2017 / O R D E R PER PRADIP KUMAR KEDIA, AM: THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, SURA T [CIT(A) IN SHORT] DATED 10/07/2013 FOR THE ASSESSMENT YEAR (AY) 2006-07. ITA NO. 2275/AH D/2013 M/S.OKAY MARKETING VS. ITO ASST.YEAR 2006-07 - 2 - 2. THE ASSESSEE HAS FILED APPEAL AGAINST THE IMPO SITION OF PENALTY OF RS.3,62,457/- UNDER S.271(1)(C) OF THE INCOME TAX A CT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT'). 3. THE LD.AR, AT THE OUTSET, SUBMITTED THAT IN THI S CASE, THE ASSESSMENT ORDER FOR THE AY 2006-07 WAS PASSED ON 2 2/12/2008 UNDER S.144 OF THE ACT WHEREBY THE INCOME WAS ASSESSED AT RS.10,85,710/- AGAINST THE INCOME RETURNED AT RS.14,772/-. THE AS SESSING OFFICER (AO) ALSO INITIATED PENALTY PROCEEDINGS UNDER S.271(1)(C ) FOR CERTAIN ADDITIONS/DISALLOWANCES MADE. THE LD.AR THEREAFTER REFERRED TO THE PENALTY ORDER UNDER S.271(1)(C) OF THE ACT DATED 26 /06/2009 SOUGHT TO BE IMPUGNED IN THE PRESENT APPEAL. ADVERTING TO PARA NO.2 OF THE PENALTY ORDER, THE LD.AR POINTED OUT THAT THE REFERENCE IN THE PENALTY ORDER IS GIVEN TO AN ASSESSMENT COMPLETED ON 29/12/2008 ON A INCOME OF RS.1,89,486/-. THE LD.AR POINTED OUT THAT GENESIS OF PENALTY ORDER CAN POSSIBLY BE QUANTUM ORDER DATED 22/12/2008. NO ORD ER WAS PASSED ON 29/12/2008 AS MENTIONED IN THE ASSESSMENT ORDER. L IKEWISE, THE INCOME DETERMINED AS REFERRED IN THE PENALTY ORDER STANDS AT RS.1,89,486/- AS AGAINST THE INCOME DETERMINED IN THE QUANTUM AT RS. 10,85,710/-. IT WAS THUS, CONTENDED THAT THE PENALTY ORDER IS VITIATED BY NON-APPLICATION OF MIND AND THERE IS TOTAL ABSENCE OF SATISFACTION WIT H REFERENCE TO THE QUANTUM ADDITIONS. THE LD.AR ACCORDINGLY SUBMITTED THAT THE PENALTY ORDER IS PRIMA-FACIE FALLACIOUS AND REQUIRES TO BE STRUCK DOWN. ITA NO. 2275/AH D/2013 M/S.OKAY MARKETING VS. ITO ASST.YEAR 2006-07 - 3 - 4. THE LD.DR RELIED UPON THE ORDER OF THE CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE ASSESS EE HAS CHALLENGED THE IMPOSITION OF PENALTY UNDER S.271(1)(C) OF THE ACT IN THE INSTANT APPEAL. WE TAKE NOTE OF THE ARGUMENTS RAISED ON BE HALF OF THE ASSESSEE AND FIND MERIT IN THE SAME. THE APPARENT MISTAKES ON THE DATE AND QUANTUM OF INCOME ASSESSED WAS POINTED OUT IN THE P ENALTY ORDER WHICH PROVES THAT THE PENALTY ORDER WAS PASSED IN A CAUSA L MANNER WITHOUT ANY APPLICATION OF MIND. THE STATUTORY SATISFACTION RE QUIRED TO BE FORMED QUA THE ADDITIONS/DISALLOWANCES, THEREFORE CANNOT BE IN FERRED IN THE INSTANT CASE. IN THE CIRCUMSTANCES, THE PENALTY ORDER DATE D 26/06/2009 FOR THE AY 2006-07 APPEALED AGAINST CANNOT BE SUSTAINED IN LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AND THE PENALTY IMPOSED UNDER S.271(1)(C) IS DIRECTED TO BE DELETED . THIS ORDER PRONOUNCED IN OPEN COURT ON 25/ 04/2017 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 25/ 04 /2017 4..+,.+../ T.C. NAIR, SR. PS ITA NO. 2275/AH D/2013 M/S.OKAY MARKETING VS. ITO ASST.YEAR 2006-07 - 4 - !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)-II, SURAT 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, (9-- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 25.4.17 (DICTATION-PAD 5- PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.4.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.25.4.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.4.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER